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Lord Alli: My Lords, first I thank the Minister for her kind words, and reiterate how pleased we are that the Government could accept these amendments. Subject to the noble Earl, Lord Ferrers, I would like to thank the noble Baroness, Lady Miller, for her contribution—not just today but, in brief, on 19 October. She made her support perfectly clear then.

In a sense, the arguments put forward today give all the justification one needs for this amendment to go through. Prejudice lives on. The argument for equality goes something like this. "We all want equality; it's a great thing. But, you know, if we're a religious organisation, we should still be allowed to discriminate against gay people". That has always been unacceptable to me. The quicker it changes, the better. I understand that there are deeply held faiths, and problems. I hope that during the consultation period, those come through and are discussed. But be in no doubt; the view held, I suspect, by the vast majority of noble Lords on this side, and in my party, remains that equality is not negotiable. It is an absolute.

I hope the Minister can pass on my thanks to her right honourable friend the Secretary of State for Trade and Industry for his personal intervention, and the way in which he has handled this matter. I want to thank the noble Baroness, Lady Scotland, who has been at the Dispatch Box more than once to listen to our arguments with her usual courtesy and frankness. I also want to thank the noble Baroness, Lady Ashton, who, throughout the Bill—not just on these amendments—has listened and acted. That is an important role to play. I sense that the debate is finished.

On Question, amendment agreed to.
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Clause 27 [Conciliation]:

Lord Alli moved Amendment No. 4:

"(da) a provision of regulations under Part 2A of this Act corresponding to section 66 below,"

On Question, amendment agreed to.

Clause 28 [Legal assistance]:

Baroness Ashton of Upholland moved Amendment No. 5:

"(11) A reference in this section to a provision of the equality enactments includes a reference to a provision of Community law which—
(a) relates to discrimination on grounds of sex, racial origin, ethnic origin, religion, belief, disability, age or sexual orientation or to equality of opportunity between men and women, and
(b) confers rights on individuals.
(12) In its application by virtue of subsection (11), subsection (1)(b) shall have effect as if it referred to an allegation by an individual that he is disadvantaged by—
(a) an enactment (including an enactment in or under an Act of the Scottish Parliament) which is contrary to a provision of Community law, or
(b) a failure by the United Kingdom to implement a right as required by Community law."

The noble Baroness said: My Lords, the purpose of this amendment is to enable the commission to support proceedings alleging that domestic legislation is incompatible with EC law in equality between men and women, or EC legislation combating discrimination on grounds of sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. This covers provisions under Articles 13 and 141 of the EC Treaty, such as the Equal Treatment Directive, the Equal Pay Directive and the race and framework directives based on Article 13.

As the Bill is currently drafted, the commission will be able to provide assistance only where the proceedings relate wholly or in part to one or more of the equality enactments. These, as noble Lords will know, include all the domestic legislation prohibiting discrimination, such as the Sex Discrimination Act 1975 and the Race Relations Act 1976, as defined in Clause 33 of the Bill. There is therefore no provision for the commission to support an individual alleging, for example, that they have been disadvantaged by other GB legislation which they believe to be incompatible with EC equality and discrimination law. However, that is less extensive than the powers that are currently available to the Equal Opportunities Commission as a result of case law. As some noble Lords know very well, about 10 years ago a case was brought and won by the Equal Opportunities Commission. It concerned the adverse impact on women of certain employment legislation provisions that required two years continuous employment for full-timers to qualify for unfair dismissal and redundancy payments but five years for part-timers, who are of course mostly women. The courts were asked to consider whether those provisions were
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compatible with community law. The Law Lords found for the Equal Opportunities Commission, which had brought the case for a judicial review, but expressed the view that individual claimants should bring their claims not by way of judicial review but before an employment tribunal, supported by the Equal Opportunities Commission.

If we do not amend the Bill in that way, the new commission will not be able to support an individual bringing a similar case. That would mean that the new commission would have fewer powers than the Equal Opportunities Commission, which, as the House will know, has never been our intention. This amendment will enable the commission to do this to support a case in which an individual alleges that they have been disadvantaged by other legislation that they believe to be incompatible with EC equality and discrimination law. I commend the amendment to your Lordships' House and beg to move.

Lord Lester of Herne Hill moved, as an amendment to Amendment No. 5, Amendment No. 6:

The noble Lord said: My Lords, in moving Amendment No. 6 and speaking to Amendment No. 5, I shall speak also to Amendments Nos. 7 and 8. The Minister explained clearly the object of the amendment, which I strongly support. It ensures non-regression; that is, it ensures that what the EOC can do will be able to be done by the new commission. There is just one snag, which comes from the problem of lists. I can see the Minister scowling but nevertheless I must deal with it.

The snag is that the way in which Amendment No. 5 is drafted does not properly reflect the EU race directive or the Race Relations (Amendment) Act 2000, so it does not properly reflect community law with regard to the other commission—the CRE. That is why my Amendments Nos. 6, 7 and 8 have been tabled, to fill the gap in the Government's amendment. To be clear, under EU law, nationality discrimination is forbidden, which is why Amendment No. 6 would add the word "national" and Amendment No. 7 includes the words "nationality (including citizenship)". That reflects both the race directive and the Race Relations (Amendment) Act 2000. That is why my Amendment No. 8 would include equal opportunity "between different racial groups", as between men and women.

This problem goes back to the well known problem that the noble Baroness, Lady Ashton, refers to often—the problem of having lists. The moment you have lists, you find that you may leave something out. It is important that the race side of the question has not been properly dealt with. I would not be surprised at all if the Minister were to say that the matter needs to be thought about further and dealt with in the other place. I should be entirely content with that—but I
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want to get right these provisions about giving assistance, as a matter of Community law. I beg to move.

Baroness Ashton of Upholland: My Lords, I thank the noble Lord, Lord Lester, for his amendments to the government amendment. He and I have discussed them on a couple of occasions and he knows that I cannot accept his amendments today. It is not only the list issue—and I regret having set myself up in that regard. The list in paragraph (a) of the government amendment intends to reflect the body of Community law associated with Article 13 of the Treaty of Rome. National origin, nationality and citizenship are not included in the concepts in Article 13 and thus are not included in the body of the amendments. We cannot consider them at the moment, because, as the noble Lord knows from when he tabled his amendments, I have not been able to explore and get cross-government agreement. That is why I cannot move on that at this point. I have, however, asked my officials to continue to work with the noble Lord on these matters, and they are delighted to do so. They will talk to the noble Lord, and I expect us to make progress as the Bill moves into another place. The points are well made by the noble Lord—I am just not in a position to get the agreements I would need.

4.15 pm

I sympathise entirely with the intention behind Amendment No. 8. It appears from the government amendment that we have given undue attention to equality of opportunity between men and women at the expense of other groups. That was not our intention. We consider that the reference in the amendment I have proposed to discrimination on the grounds of sex, racial origin or ethnic origin and other factors implies equal equality of opportunity for the groups concerned. Our intention in making explicit mention of equality of opportunity for men and women is to ensure that equal pay issues were clearly included within the body of relevant Community law. I accept the point, but I cannot accept the drafting. If the noble Lord will permit me, I will take this away, and the Government will propose at a later date some alternative drafting that gives effect to the intention he is seeking. On the basis that we will certainly look at Amendment No. 8 and that we will continue to work with the noble Lord on the other two amendments, I hope that he will feel able to withdraw his amendment today.

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